Krok v. The Nash Engineering Co. (Matter of New York City Asbestos Litigation, 2017)

Our plain-English summary of Matter of New York City Asbestos Litigation (New York Supreme Court, Appellate Division, January 26, 2017).

Susan Krok, as administratrix of the estate of Raymond J. Krok, Sr., sued several companies in New York City asbestos litigation, including The Nash Engineering Company. The opinion does not name the decedent's disease. It says he was assigned to a ship as a boiler tender fireman. Nash moved for summary judgment to dismiss the complaint against it, and the trial court denied the motion. The First Department unanimously affirmed. It held that Nash had not shown, as a first step, that the decedent could not have been exposed to its products or to the asbestos in them. Nash had relied on the decedent's inability to identify its product as a source of his exposure, and the court said that reliance was misplaced. The court also found that, even if Nash had met its initial burden, the plaintiffs raised a factual issue. They submitted evidence that Nash's asbestos-containing pumps were on the ship to which the decedent was assigned. The claim against Nash therefore went forward.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Appellate Division, 1st Dept.
• Decided: January 26, 2017
• Citation: 146 A.D.3d 700
• Stage: Appeal from summary judgment
• State: New York

Outcome. The Appellate Division, First Department, unanimously affirmed the trial court's denial of Nash Engineering Company's motion for summary judgment, so the plaintiff estate's claim against Nash continued.

What the court held. A defendant seeking summary judgment must first show prima facie that the decedent could not have been exposed to its products or their asbestos; the decedent's inability to identify the defendant's product as a source of exposure does not meet that burden.

Issues decided: Wrongful Death and Survival, Product Identification.

The people and their exposure

• Raymond J. Krok, Sr.; died

The defendants

• The Nash Engineering Company (manufacturer)
• Aerco International, Inc.

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Held v. Sequoia Ventures (Matter of New York City Asbestos Litigation) (June 12, 2007). The Appellate Division affirmed the ruling in favor of Sequoia Ventures (formerly Bechtel), rejecting the plaintiff executrix's claim that the engineer's insulation specifications caused her husband's mesothelioma.
• Croteau v. Treadwell Corp. (Matter of New York City Asbestos Litigation) (June 26, 2007). The Appellate Division affirmed the order granting Con Edison contractual indemnification against Treadwell for sums paid to Croteau, rejecting Treadwell's arguments.
• DiSalvo v. Neles-Jamesbury (Matter of New York City Asbestos Litigation) (December 11, 2014). The Appellate Division affirmed the denial of summary judgment to Neles-Jamesbury, Inc., holding it had not met its initial burden, so plaintiff Carl DiSalvo prevailed on the appeal.
• Sweberg v. Crane Co. (Matter of New York City Asbestos Litigation) (October 6, 2016). The First Department reversed the order on the Labor Law § 240(1) claim, granting the defendants' motion and dismissing the complaint on that claim. It also upheld the jury's verdict against Crane Co. on failure to warn and recklessness, but found the future pain and suffering award materially excessive to an extent the text does not state.
• Hackshaw v. Crane Co. (Matter of New York City Asbestos Litigation) (October 6, 2016). The First Department affirmed the jury verdict for plaintiff Dorcas Hackshaw (executrix of Selwyn Hackshaw) against Crane Co. on liability, but found the award for past pain and suffering excessive and reduced it to the extent indicated (the figure is not in the text).
• Brown v. Consolidated Edison Co. of New York (Matter of New York City Asbestos Litigation) (March 28, 2019). The Appellate Division reversed the judgment that capped Con Ed's share at 30% and directed an amended judgment apportioning 65% of plaintiff's total recovery against Con Ed, so plaintiff won and Con Ed lost; Con Ed's cross appeal from the denial of summary judgment was dismissed.
• Macaluso v. A.O. Smith Corp. (Matter of New York City Asbestos Litigation) (June 18, 2019). The First Department affirmed the jury verdict for plaintiff on liability but ordered a new trial on damages unless plaintiff stipulated to further reduce the awards to $4 million for pain and suffering and $1 million for each child's loss of parental guidance.
• English v. Colgate-Palmolive Co. (Matter of New York City Asbestos Litigation) (May 21, 2024). The First Department reversed the trial court's denial of Colgate-Palmolive's summary judgment motion, granted the motion and dismissed the complaint against Colgate, ruling against the plaintiff executor.
• Seen v. Kaiser Gypsum Co. (Matter of New York City Asbestos Litigation) (May 21, 2024). The First Department modified the judgment against Kaiser Gypsum, ordering a new trial on pain and suffering damages unless plaintiff stipulated to reduce the $15 million award to $10 million, remanded to recalculate the judgment for settlement offsets, and otherwise affirmed the verdict for plaintiff.

Later decisions citing this one

8 later decisions in our library cite this one:

• Howard v. AO Smith Water Prods. (New York Supreme Court, Appellate Division, 3rd Dept., 2023). The Appellate Division modified the order, granting Armstrong Pumps partial summary judgment for exposure before December 20, 1965 (which plaintiffs conceded), and otherwise affirmed the denial of summary judgment, so plaintiffs Howard and his spouse won on the remaining claims.
• Shanahan v. Aerco Intl., Inc. (New York Supreme Court, Appellate Division, 1st Dept., 2019). The First Department affirmed the denial of Algoma Hardwoods' motion for summary judgment, so plaintiff Michelle Shanahan's claims against Algoma continue.
• Camiolo v. American Biltrite Inc. (New York Supreme Court, 2021). The trial court denied Goodyear Tire & Rubber Company's motion for summary judgment, finding plaintiffs raised fact issues on whether decedent was exposed to asbestos from Goodyear floor tiles.
• Sargent v. Paccar, Inc. (New York Supreme Court, Albany, 2020). The court denied PACCAR Inc.'s (Peterbilt's) motion for summary judgment dismissing the Sargent plaintiffs' complaint and cross claims, finding the defendant did not meet its initial burden and that fact issues remained.
• Cohen v. American Biltrite Inc. (New York Supreme Court, 2018). The court denied Colgate-Palmolive's motion for summary judgment because it failed to meet its initial burden to show the absence of asbestos in its talc, and in any event plaintiff raised factual issues on causation.
• Chen v. Volkswagen Group of America (In re New York City Asbestos Litigation) (New York Supreme Court, 2018). The trial court denied Volkswagen Group of America's and Nissan North America's motions for summary judgment for lack of personal jurisdiction, and denied the forum non conveniens motions of those two companies and Ford, so plaintiffs kept their New York forum.
• Fogel v. American Int'l Indus. for Clubman (Matter of New York City Asbestos Litig.) (New York Supreme Court, 2017). The court granted the motions of defendants Unilever (Brut) and Whittaker Clark & Daniels, reversed the Special Master's decision placing plaintiff in the in extremis cluster, and ordered the case moved to the next FIFO cluster.
• Snedeker v. Arvinmeritor, Inc. (New York Supreme Court, Broome, 2017). The trial court denied ArvinMeritor's (Rockwell's) motion for summary judgment dismissing the plaintiffs' complaint and cross-claims, finding it had not met its initial burden and that material fact issues remained.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

146 A.D.3d 700 (2017)

2017 NY Slip Op 00572

44 N.Y.S.3d 911

In the Matter Of NEW YORK CITY ASBESTOS LITIGATION.

SUSAN KROK, as Administratrix for the Estate of RAYMOND J. KROK, SR., Deceased,

Respondent,

v.

AERCTO INTERNATIONAL, INC., etal., Defendants, and

THE NASH ENGINEERING COMPANY, Appellant.

2903, 190272/14.

Decided January 26, 2017.

Appellate Division of the Supreme Court of New York, First Department.

Order, Supreme Court, New York County (Peter H. Moulton, J.), entered April 12, 2016, which denied defendant Nash Engineering Company's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Concur — Friedman, J.P., Richter, Saxe, Moskowitz and Kapnick, JJ.

Defendant failed to establish prima facie that plaintiff's decedent could not have been exposed to its products or the asbestos contained therein (see Koulermos v A.O. Smith Water Prods., 137 AD3d 575 [1st Dept 2016]). Its reliance on the decedent's inability to identify its product as a source of his exposure to asbestos is misplaced (see id.; Salerno v Garlock Inc., 212 AD2d 463 [1st Dept 1995]). In any event, plaintiffs raised an issue of fact by submitting evidence that defendant's asbestos-containing pumps were present on the ship to which the decedent was assigned as a boiler tender fireman.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites